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The good news is the Supreme Court's Riley decision forces law enforcement to obtain warrants before searching cell phones. The bad news, apparently, is everything else. To begin with, particularity remains a problem. As the Supreme Court pointed out in its decision, people's entire lives are contained in their cell phones. When searching for what's relevant to the suspected criminal activity, the government is pretty much free to dig through these "lives" to uncover what it needs to move forward with prosecution.

The lack of strict parameters (perhaps an impossibility given the nature of digital communications/data) leads to fishing expeditions operating under the cover of Fourth Amendment adherence. There's no way to prevent trolling for evidence of unrelated criminal activity. The only recourse is to challenge it after it happens. Sometimes the courts find the government has gone too far. Other times, courts say the evidence would have been "inevitably discovered" in the course of the search and prevent it from being suppressed.

Then there are decisions like the one reached by a federal court in South Dakota -- one that says just because one law enforcement agency deployed a warrant to image the contents of a cell phone doesn't mean other law enforcement agencies can take a look at it without obtaining a warrant of their own.

Volokh Conspiracy's Orin Kerr snagged the decision and added some brief analysis. A cell phone seized by local police was also apparently of interest to the federal Bureau of Alcohol, Tobacco and Firearms (ATF), which was running its own investigation on the same subject. The local cops were looking for counterfeiting evidence, while the ATF was interested in firearms-related evidence.

The locals obtained a warrant and imaged the phone's contents. In the course of its investigation, the ATF pulled up the suspect's file and noticed the recent arrest and seizure of the suspect's cell phone. The Huron (SD) police department helpfully informed the ATF that it had a copy of the cell phone's contents that the ATF could take a look at. The ATF accepted the offer, but did not perform the crucial step of obtaining a warrant. That misstep cost the ATF its evidence.

According to the government, all evidence seized -- even if unrelated to the investigation at hand -- should be accessible to any law enforcement agency without obtaining another warrant. Because teamwork. The court disagrees [PDF], pointing out that the government's asking the court to grant it an open-ended fishing license for all electronic devices seized with a warrant:

The government argues that this conclusion is impractical and is contrary to the nature of police investigations and collaborative law enforcement among different agencies. The governments position, however, overlooks the ultimate touchstone of the Fourth Amendment: reasonableness. Riley, 134 S. Ct. at 2482.

According to the government, law enforcement agencies can permanently save all unresponsive data collected from a cell phone after a search for future prosecutions on unrelated charges. If the governments argument is taken to its natural conclusion, then this opens the door to pretextual searches of a persons cell phone for evidence of other crimes. Under the governments view, law enforcement officers could get a warrant to search an individuals cell phone for minor infractions and then use the data to prosecute felony crimes. No limit would be placed on the governments use or retention of unresponsive cell phone data collected under a valid warrant.

The court also disagrees with the government's plain view defense. In order for the "plain view" exception to work, there has to be justification for the "view" itself. In this case, the ATF had no justification for viewing the contents of a cell phone seized by another agency for an unrelated investigation.

The government also argued that the exclusionary rule shouldn't be applied to the evidence it obtained without a warrant. The court again disagrees, pointing out that the government will suffer minimally from the exclusion of evidence it apparently wasn't planning to introduce anyway. In addition, a failure to enforce the exclusionary rule in cases like these would just result in more governmental fishing trips.

Here, the cost of applying the exclusionary rule is minimized because the evidence is peripheral in nature and not directly related to the firearms offense. The governments actions also suggest the evidence is not necessary for a conviction. Prior to Agent Fairs search of the iPhone data, the government was ready to proceed with trial on January 3, 2017. Minutes before voir dire, the parties addressed a late discovery issue, and the court granted a continuance. If the issue had not come before the court, the government would have tried its case, and the iPhone data would not have been used.

In contrast, the benefits of applying the exclusionary rule in this case are clear. If the exclusionary rule is not applied, law enforcement agencies will have carte blanche authority to obtain a warrant for all data on a cell phone, keep the unresponsive data forever, and then later use the data for criminal prosecutions on unrelated chargeserasing the protections specifically contemplated in Riley.

All well and good as far as it goes for upholding Fourth Amendment protections, but as Orin Kerr points out, the court seems to be balancing the government's losses against the plaintiff's rights before arriving at this conclusion.

As I have written before, I dont think it works to do this kind of case-by-case cost/benefit balancing when applying exclusionary rule precedents. But if the evidence isnt important, the government isnt going to file an appeal of the decision granting the motion to suppress. This decision is likely the end of the road in terms of judicial review of the Fourth Amendment issue.

They don't call the exclusionary rule a RULE for no reason. When rights are violated, exclusion is the proper remedy. Whether or not it damages the government's prosecution should be a distant secondary concern.

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Federal Court Tells ATF It Can't Just Help Itself To Cell Phone Data ... - Techdirt

Floridas stand your ground law, a source of contention for years, could soon provide even more protection to people who invoke it. Some lawmakers want to make prosecutors prove a defendant wasnt acting in self-defense before proceeding to trial.

Florida has been a leader in giving citizens immunity in cases of self-defense, with its stand your ground law serving as an emotional point of debate after several high-profile shooting deaths, including that of unarmed black teenager Trayvon Martin.

While at least 22 states have similar laws that say people can use force even deadly force to defend themselves from threats, Florida could soon be alone shifting the burden of proof to prosecutors.

Republican Sen. Rob Bradley says his bill isnt a novel concept.

We have a tradition in our criminal justice system that the burden of proof is with the government from the beginning of the case to the end, he said.

Floridas Supreme Court has ruled that the burden of proof is on defendants during self-defense immunity hearings. Thats the practice around the country. According to a legislative staff analysis of Bradleys bill, only four states mention burden of proof in their stand your ground laws Alabama, Colorado, Georgia and South Carolina and all place the burden on defendants.

Bradleys bill died last year but now its chances are improving: Its ready for a full Senate vote when the session begins next week, and one of two House committees assigned to hear it has approved it.

Democrats are opposing the bill, but have little leverage to stop it in a legislature dominated by Republicans and with a Republican governor.

The bill has received passionate opposition from people who feel the existing law has already been abused and will be invoked even more by people seeking to avoid responsibility for violent crimes.

Stand your ground is not just about guns: The defense can be invoked after any act of violence aimed at self-protection, whether its punching, stabbing, shooting or striking someone with an object.

Neighborhood watch volunteer George Zimmermans fatal shooting of Trayvon Martin isnt the only case thats part of the debate in Florida.

Lucy McBaths 17-year-old son Jordan Davis was fatally shot by Michael Dunn during an argument over loud music outside a Jacksonville convenience store. And in the Tampa Bay area, retired police officer Curtis Reeves is claiming self-defense in a stand your ground pretrial hearing after fatally shooting Chad Oulson in a dispute over a cellphone at a movie theater.

Both Zimmerman and Dunn claimed self-defense at trial and stand your ground was included in their juries instructions. Zimmerman was acquitted and Dunn was eventually convicted of murder.

McBath believes the way the law currently reads is why Dunns first jury couldnt reach a decision, and says expanding stand your ground protections would make it harder to keep people safe from gun violence.

Testifying against the bill at a Senate committee meeting, McBath said the current law already encourages citizens to shoot first and ask questions later.

This legislation would effectively require defendants who raise stand your ground defenses to be convicted twice, she said. Having lived through this grueling experience firsthand with two trials for my sons murder, I can attest to the anguish and the pain that this process elicits. We should not make it harder for family members to achieve the justice that they deserve.

Marissa Alexander, in contrast, supports Bradleys bill. She unsuccessfully tried a stand your ground defense and was sentenced to 20 years in prison in 2012 for firing a gun near her estranged husband. She called it a warning shot to protect herself from abuse. Her conviction was thrown out on appeal and she was freed after reaching a plea deal in 2014.

I feel like you go into that kind of situation guilty until proven innocent, she said. She hopes Florida will start another trend if it passes.

Florida kind of sets the tone and other states follow, she said.

Republished with permission of The Associated Press.

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State could flip burden of proving 'Stand Your Ground ... - SaintPetersBlog (blog)

The Second Amendment is not about guns | The Olympian The Olympian The late Justice Scalia held that the meaning of the original language should control the interpretation of laws. The Second Amendment of the United States ... and more »

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The Second Amendment is not about guns | The Olympian - The Olympian

TUNIS: German Chancellor Angela Merkel is set to press Tunisian leaders to step up efforts to help curb an influx of illegal migrants to her country during a visit on Friday. Her two-day trip, which also included a stop in Egypt, comes with Germany still reeling from several jihadist attacks, including a truck rampage by a Tunisian suspect at a Berlin Christmas market that killed 12 people. Merkel's talks with top officials including President Beji Caid Essebsi are expected to include ways to tackle years of instability exploited by people smugglers in neighbouring Libya. The visit is also a chance for Merkel to pledge support for a country often hailed as a rare success story of the Arab Spring uprisings that shook the region and toppled autocrats including longtime Tunisian dictator Zine El Abidine Ben Ali. Since its 2011 revolution, Tunisia has passed a new constitution and held free parliamentary and presidential elections. But the nation faces high unemployment, social tensions and the threat from jihadists who have killed dozens of soldiers and police as well as civilians including 59 foreign tourists. Merkel, who faces elections in September, is under pressure to reduce the number of asylum seekers coming to Germany, which has taken in more than one million migrants since 2015. "There are routes for illegal immigration from Libya to Germany. We have a lot of mutual concern and interest in putting an end to this," she said on Thursday at a press conference with Egyptian President Abdel Fattah al-Sisi. Merkel, who will address Tunisia's parliament, has urged the North African states to step up border controls and speed up procedures to repatriate migrants whose asylum applications are rejected. On migration, the procedures "were very slow but they have improved recently and will continue to improve," Germany's ambassador to Tunisia, Andreas Reinicke, told RTCI public radio. The Tunisian presidency told AFP that issues surrounding immigration "do not constitute a problem between the two countries... In Europe, everyone has seen that Tunisia now controls its borders much better." Germany has said that Tunisian bureaucratic delays meant it could not expel the Tunisian suspect in the Berlin Christmas market attack, Anis Amri, even though his asylum application had been rejected six months earlier. Essebsi told AFP in January that Tunisia "is a country which assumes its responsibilities." And a Tunisian official, who did not want to be named, said that Prime Minister Youssef Chahed's visit to Germany last month for talks had "helped appease things." The migrant issue had already been contentious in Germany where sexual assaults by large groups of mostly North African men on New Year's Eve 2015-16 against women in Cologne provoked outrage. Merkel's interior minister floated an idea for North African countries to build holding centres for returned migrants but it was rejected by Merkel's centre-left coalition partners and rights groups. Her trip is part of a larger diplomatic push by the German leader, who last year visited Mali, Niger and Ethiopia. She had also planned a trip to Algeria last week, but it was called off after President Abdelaziz Bouteflika fell ill. Germany, which this year holds the G20 presidency, has also announced investment partnerships in Africa with the long-term goals of reducing poverty and deterring people from leaving. Merkel is joined on her trip by a business delegation that could bring much-needed investments.

Read more here:
Merkel visits Tunisia for talks on migrant crisis - Arab News

Ana Miranda said she recently returned to Gainesville from Mexico, where she visited her deported husband.

Miranda, who said she has papers to legally work here, stays with a daughter and grandchildren at the public housing complex adjacent to Gainesville Housing Authority headquarters, 750 Pearl Nix Parkway.

Mirandas daughter and grandchildren all born in the United States live without fear of being deported. Miranda said thats not the case with many Latinos who fear getting arrested and sent back to their country of origin, as was her husband eight years ago at the height of another crackdown against undocumented immigrants.

Many are afraid to leave their homes, she said. We live in fear.

National debate continues to rage over immigration policies, including the cost of illegal immigrants on communities and what government services, such as public housing, they receive.

On one side of the argument, advocates for illegal immigrants say they pay their way in taxes, including property and sales taxes. On the flip side, others are resentful because undocumented immigrants could be receiving public assistance that should be going to citizens and other legal residents.

The debate has been strongly felt locally as protesters participated in A Day Without Immigrants on Feb. 16, and days later many immigrants and advocates waved signs at passing motorists along E.E. Butler and Jesse Jewell parkways.

These events developed just a few days after immigration agents arrested 680 undocumented immigrants in various states, including Georgia.

As part of an ongoing series on immigration, the Congressional Budget office said the budgetary impact of approximately 12 million illegal immigrants varies from state to state. However, the CBO states that according to most studies state and local governments spend more on unauthorized immigrants than they collect in revenues from that population.

Agencies that render public assistance dont want to get caught in the debates crossfire.

No federal dollars subsidize undocumented

Beth Brown, executive director of Gainesville Housing Authority, points to a standing U.S. Department of Housing and Urban Development directive to clear any misunderstanding. The memo states in part: A family is considered to be eligible if at least one member of the family (adult or minor child) is determined to be a citizen or have eligible immigration status.

However, the same directive adds that illegal immigrants are required to pay market rent such that no HUD dollars are used to subsidize them.

Brown said no cash is given out by the agency and no dollars are used for those who cannot show legal documents.

Theres a complicated formula, but anyone not here legally does not get federal dollars, Brown said. No federal dollars are used to subsidize an illegal immigrant.

The Division of Family and Childrens Services takes a similar approach in dispensing the Georgia food stamp program, federally known as the Supplemental Nutrition Assistance Program, according to spokeswoman Mary Beth Lukich.

Lukich said for a family with household members who are here both legally and illegally in the country, benefits are given to those who are legal. However, she said the illegal members income is used to count toward the total household budget.

As an example, Lukich said in a household of five with one ineligible household member, income is counted for all five but benefits are only issued based on four.

In short, undocumented aliens and illegal immigrants are not eligible for SNAP benefits, Lukich said.

Wendy Glasbrenner, a Gainesville attorney with Georgia Legal Services, characterizes as false the notion that undocumented immigrants are abusing the system.

They are not eligible for food stamps or Medicaid or Social Security or Medicare, so the myth that they are draining these resources is false, Glasbrenner said. Of course, if they have citizen children, the kids might be eligible for the same benefits as children born to natural born parents.

The Georgia Legal Services Program is a private nonprofit law firm funded by grants, the largest coming from the Legal Services Corp. funded by Congress, according to Glasbrenner. She said the firm does no immigration work, and can only represent immigrants who are documented or are victims of domestic abuse or human trafficking.

Because of our restrictions, our Hispanic caseload does not match the Hispanic population in Gainesville, Glasbrenner said.

Health services dont check legal status

David Palmer, a spokesman for the District 2 Public Health Department that covers a 13-county region that includes Hall, said the agency follows the law when it comes to providing health services.

In 2016, the Hall County Public Health Department served 22,667 clients who made a total of 57,721 visits and received 221,555 services, according to Palmer. He said about half of the clients served and more than half of the services provided were for children from infancy to age 12.

Palmer said childrens services include nutrition, immunizations, dental and physicals.

So one child may receive multiple services throughout the year, Palmer said.

In some instances, Palmer said it might be less of a burden to the state in the long run to provide certain preventive services free to avoid the spread of diseases that could infect others. For example, he said those with infectious diseases such as meningitis, pertussis, tuberculosis and sexually transmitted diseases may be treated.

Palmer said that as a safety net for basic health needs, the agency does not require proof of legal immigration status.

We dont want an environment that people feel threatened, Palmer said. Thats the last thing we want to do. We do ask all our clients if they have insurance or how they will pay for services.

If a person is uninsured, Palmer said the agency will ask for proof of income. According to the services provided, fees are charged on a sliding scale from paying nothing to paying 100 percent of the bill.

Palmer said some services may be provided at no cost for people who are income eligible. He said one example is the federally funded Vaccines for Children program that provides immunizations to uninsured children.

The Northeast Georgia Health System spends more than $17 million annually on charity care in Hall County, according to the most recent information provided by spokeswoman Michelle Oleson.

Oleson said the cost is probably higher because the $17 million figure does not include bad debt attributed to those unable to pay their bills. However, Oleson said NGHS cant pinpoint a number of cases that may go to illegal immigrants.

I dont think we track how much of this comes from undocumented or illegal immigrants, Oleson added.

School enrollment hard to measure

Hall County Schools Superintendent Will Schofield told The Times its illegal for public schools to ask any questions about legal status. For that reason, he said he cant quantify what percentage of the school district budget is dedicated to providing a K-12 education to illegal immigrants.

We have no records related to that, Schofield said.

Gainesville Schools Superintendent Wanda Creel cited the 1982 U.S. Supreme Court ruling in Plyler v. Doe declaring that state cant deny students a public education on account of their immigration status.

We cannot require students or parents to disclose or document immigration status, Creel said.

Last month U.S. Rep. Doug Collins, R-Gainesville, introduced legislation to end tax-funded benefits to individuals residing in the United States illegally. The legislation attempts to undo a provision under the Obama Administrations Deferred Action for Childhood Arrivals policy allowing illegal immigrants to claim the Earned Income Tax Credits retroactively.

Under no circumstances should our system allow illegal immigrants to glean benefits at the expense of American taxpayers, and this bill allows call for us to examine the rule of law and enforce it fairly, Collins said in a statement.

Ann Nixon, who not too long ago headed Habitat for Humanity and is now on the One Hall United Against Poverty Board with the United Way, said that debate misses the mark. She said the community should be reaching out to everyone in need instead of categorizing groups of people.

Its not based on their immigration status, its based on humanity, Nixon said.

Originally posted here:
Weighing humanity vs. cost of illegal immigration in Hall County - Gainesville Times